1. The scope of deliveries or services (hereinafter referred to as Deliveries) are subject to mutual written declarations. The Customer´s general terms and conditions shall only apply to the extent expressly confirmed in writing by supplier or service provider (hereinafter referred to as Supplier).
2. The Supplier is unrestrictedly reserving title and copyright to cost estimates, drawings and other documentation (hereinafter referred to as Documentation). Third parties may only be granted access to the Documentation if the Supplier´s prior written consent had been obtained, and shall be returned to him immediately upon request if no assignment is made. Item 1 and 2 shall likewise apply to Customer´s documents which, however, may be released to third parties who the Supplier properly assigned deliveries to be effected.
3. The Customer has a non-exclusive right to utilize the standard software with stipulated quality features in unmodified form on equipment agreed upon. The Customer may, without express agreement, create two backup copies.
4. Partial Deliveries shall be permitted to an extent acceptable by the Customer.
II. Prices and Terms of Payment
1. Prices apply ex works, excluding packaging, plus legal VAT valid at the time.
2. Should the Supplier have assumed installation or assembly, the Customer shall, besides compensation agreed upon, and in the absence of other agreements, bear any accessory costs incurred, such as travel expenses, costs for transportation of tools and personal luggage, as well as daily allowances.
3. Payments shall be effected to the Supplier´s banking institution free of charges.
4. The Customer may only set off uncontested or non-appealable claims.
5. Invoices must be settled to the Supplier´s account within the credit period. Any default in payment shall result in 1 per cent interest charged per month for any fraction thereof.
III. Reservation of Title
1. The subject of Delivery (conditional goods) shall remain Supplier´s property until the Customer has satisfied any and all claims arising from the deal. To an extent the value of all risk protection rights, Supplier is entitled to, may exceed the amount of all secured claims by 20 per cent, Supplier shall release a portion equivalent to the risk protection rights upon Customer´s request.
2. During the time of title reservation, the Customer is not authorized to pledge or assign the conditional goods; resale is only permitted to resellers within the course of ordinary and proper business, under the terms that reseller will receive cash payment from his customers, or impose the condition that his own customers will acquire title only once payment has been made in full.
3. In case of seizure, attachments or other injunctions or third-party intrusion, the Customer must notify Supplier immediately.
4. In case of Customer´s faulty infringement of substantial contractual obligations, in particular reference to default in payment, the supplier shall be entitled to reverse Delivery after pertinent dunning notice has been given; the Customer is committed to release the goods. The act of Supplier´s reversing Delivery, or enforcing the title reservation, or pledging the conditional goods, will not constitute a cancellation of the contract unless the Supplier expressly states so.
IV. Delivery Dates and Delays
1. Compliance with negotiated delivery dates requires timely receipt of documents to be provided by the Customer, necessary approvals and releases, with particular reference to plans, and compliance with arranged payment terms, as well as other commitments to be fulfilled by the Customer. Should these prerequisites not be met in time, adequate extensions of time shall be granted. This shall not be applicable if the Supplier is responsible for occuring delays.
2. Should deadlines not be met due to force majeure, such as mobilization, state of war, public unrest, or similar events like strikes or lock-outs, adequate extensions of time shall be granted.
3. Any Customer claims to compensatory damages are excluded in all cases of delayed delivery, to include expiration of a time extension. This shall not apply to an extent that mandatory liability may have to cover in cases of wilfull intent or gross negligence, which will not involve the burden of proof to be shifted to the Customer´s disadvantage. The Customer´s right to cancellation upon futile expiration of time extensions granted to the Supplier remains unaffected.
4. Should dispatch or delivery be delayed by more than one month from the date of notification of readiness at the Customer´s request, the latter may be charged monthly storage fees in the amount of .5 per cent, or a maximum of 5 percent, of the relating Delivery value for any fraction of the month. The contracting Parties shall be free to present proof of higher or lower storage fees.
V. Risk Passing
1. Risks are passing to the Customer, also in cases of free-of-charge Deliveries, as outlined below:
- 1. in case of delivery not involving installation or assembly, if dispatched or picked up. Upon Customer´s request, the Supplier will insure Deliveries against common transportation risks at the Customer´s expense.
- 2. in case of delivery involving installation or assembly, on the day of takeover into Customer´s operation site, or, to an extent agreed upon, after faultless test operation.
2. Should dispatch, delivery, commencement of installation or assembly, takeover into Customer´s operation site, or test operation be delayed for reasons within Customer´s responsibility, or if Customer may be prevented from accepting Delivery for other reasons, the risk is also passing to the Customer.
VI. Installation and Assembly
The following terms are governing installation and assembly, unless otherwise provided for:
1. The Customer has to assume financial responsibility for and provide in time
- 1. all excavations, constructions and other not trade-related accessory works, including skilled and unskilled workers, building materials and tools;
- 2. all implements required for assembly operation and equipments such as scaffolds, hoists and other devices, fuels and lubricants;
- 3. energy supply and water on-site, to include connections, heating and illumination;
- 4. sufficiently large, dry and lockable rooms at the assembly site for storage of machine parts, materials, tools, etc.; proper work and recreation rooms for the assembly staff, to include sanitary installations appropriate to the conditions; besides, the Customer has to initiate the same measures to protect the Supplier´s property as he would for the protection of his own property, and onsite assembly staff;
- 5. protective clothing and safety devices which any particular conditions at the assembly site may call for.
2. Prior to commencement of the assembly works, the Customer has to provide necessary details on the position of scratch-coated electric cables, gas and water pipes, or similar installations, and volunteer required data on structural conditions.
3. Prior to commencement of installation or assembly, required provisions must be made and devices be available at the installation or assembly site, and all groundworks have progressed to an extent that installation or assembly may be commenced as agreed upon and be performed without interruption. Pull-up paths and installation or assembly sites must be cleared up and leveled off.
4. Should installation, assembly or commencement of operations be delayed due to circumstances beyond Supplier´s responsibility, the Customer shall bear, to a proper extent, any expenses incurred in waiting time and additionally required travel by Supplier or assembly staff.
5. The Customer has to confirm to Supplier on a weekly basis the duration of ongoing works performed by the assembly staff, and the finalization of installation, assembly, or commencement of operations without undue delay.
6. Should the Supplier request formal acceptance of the Delivery upon finalization, the Customer shall comply within two weeks time. If not done, acceptance is considered effected. Likewise, acceptance is considered effected once Delivery was put into operation after completion of a stipulated test period, if applicable.
VII. Receipt of Deliveries
Notwithstanding potential insignificant defects, the Customer has to take possession of Deliveries.
The Supplier shall be liable for defects, to include the lack of assured properties, as outlined below;
1. Any parts or services whose usefulness may, irregardless of their lifetime, within twelve months from the date of risk passing, be affected to an extent not considered insignificant as a result of an event ocurring prior to risk passing, shall, at Supplier´s discretion, be improved, delivered or reproduced.
2. Warranty claims shall expire twelve months from the date of rebuke notification, which the Supplier has to be informed of immediately.
3. In case of a complaint, the Customer may retain payments to an extent equivalent to the defects revealed. If the contract pertains to his commercial trade operation, the Customer may only retain payments if the substance of his complaint is beyond all doubts.
4. The Supplier has to be given sufficient time and opportunity to remove the defects. If denied, he shall be released from warranty.
5. Should the Supplier let a time extension pass without removing the defect, the Customer may demand cancellation of the contract (redhibition) or reduction of compensation (diminution).
6. Warranty does not extend to normal wear and tear or damages incurred after risk passing as a result of faulty or negligent treatment, excessive use, improper operating supplies, faulty construction work, unsuitable building sites, or because of special outside influences, not foreseen in the contract, and non-reproducible software bugs. Improper modifications or maintenance work done by the Customer or third parties and any relating consequences are not be covered by this warranty agreement.
7. Warranty for improvements, substitute deliveries or services provided is granted for a period of six months, lasting at least until the time the original warranty for the delivered items would expire. The period shall be extended for those parts, proper use cannot be made of due to the disruption, and by the time of disruption caused due to improvement or substitute delivery or service provided.
8. The periods listed in Items (1), (2) and (7) do not apply if longer periods of time are defined in Article 638 of the German Civil Code [BGB].
9. Further warranty claims by the Customer against the Supplier and his vicarious agents are excluded; Article XI below (Other Liabilities) remains unaffected though.
IX. Industrial Property Right and Copyright
1. Should justified claims be filed by third parties on account of infringement of industrial property rights or copyrights (hereinafter referred to as Property Rights) based on products delivered by the Supplier and utilized as stipulated in the contract, the Supplier shall be liable towards the Customer as outlined below:
- 1. The Supplier shall, at his own descretion, either obtain the right to utilize the product, or modify the product to the extent that property rights are no longer infringed, or exchange the product. Should this not be feasible at reasonable conditions, the Supplier shall take the product back against refund of the purchase price.
- 2. The above commitments on the side of the Supplier shall only apply if the Customer will notify the Supplier immediately of any claims filed by third parties, will not acknowledge any infringement, and leave any and all defensive measures and settlement negotiations up to the Supplier. Should the Customer discontinue utilization of the product for mitigating or other important reasons, he shall be committed to emphasize towards the third party that the discontinuation of utilization does not constitute infringement of property rights being acknowledged.
2. Claims by the Customer shall be excluded to an extent he is responsible for infringement of property rights.
3. Claims by the Customer shall also be excluded to an extent the property right infringements may be caused by the Customer having imposed special requirements, by any type of application unforeseeable by the Supplier, or because of the product having been modified or utilized in concert with other products not delivered by the Supplier.
4. Additional claims against the Supplier are excluded. However, Article XI below (Other Liability) remains as unaffected as the Customer´s right to withdraw from the contract.
X. Impossibility of Contract Performance, Adjustment
1. Should Delivery to be effected by the Supplier be rendered impossible due to reasons within the scope of his responsibility, the Customer is entitled to demand compensatory damages. However, the Customer´s claims to compensatory damage are restricted to 10 per cent of the value of the delivery portion, a useful operation of which cannot be commenced because of the impossibility. This shall not apply to the extent of mandatory liability in cases of willful intent, gross negligence, or initial inability, and is not affiliated with shifting the burden of proof to the Customer´s disadvantage. The Customer´s right to withdraw from the contract remains unaffected.
2. To an extent unforeseeable events in the meaning of Article IV Item 2 may considerably alter the commercial significance or the subject of Delivery, or may have substantial influence on the Supplier´s operation, the contract shall be reasonably adjusted by oberserving good faith. If this is not acceptable from an economic view point, the Supplier will be entitled to cancel the contract. When making use of this right to withdraw from the contract, the Supplier shall notify the Customer immediately upon perceiving the consequences of the event, even if an extension of the delivery period had first been agreed to.
XI. Other Liability
Compensatory damage claims by the Customer, on whatever legal basis, with particular reference to breach of contract, for infringement of contracting duties, and for any tortious act, are excluded. This shall apply to the extent that mandatory liability is granted, for instance, under the German Product Liability Act, in cases of willful intent, gross negligence, lack of assured properties, or infringement of essential contracting duties. Compenatory damages for the latter are, however, limited to typical and foreseeable damages, unless willful intent or gross negligence are evident. The afore mentioned provision does not entail that the burden of proof be shifted to the Customer´s disadvantage.
1. If the Customer has full merchant status, the sole venue for any and all disputes arising directly or indirectly from the contract is, at Supplier´s discretion, the Supplier´s head or branch office.
2. The contractual relations are governed by German law, whereby the United Nations Convention on Contracts and International Sale of Goods (CISG) is excluded.
XIII. Contractual Commitment
Should individual clauses be rendered legally invalid, all other provisions of the contract will remain binding. This shall not apply if adhering to the contract would constitute undue hardship to either Party.